In August 2020, a five-judge bench of the Supreme Court headed by Justice Arun Mishra, in State of Punjab vs. Davinder Singh and Others case, gave ruling in favour of granting preferential treatment to certain groups within scheduled castes (SCs) and scheduled tribes (STs) over others. The law under consideration was the Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006. As per the verdict, there are disparities within scheduled castes and scheduled tribes groups and there is need for a further sub-classification, which the state governments are entitled to do. The judgement on the issue has re-ignited the debate on the ‘reservation within reservation’ of the scheduled castes and scheduled tribes groups and the concept of ‘creamy layer’ (a term used in Indian politics to refer to some members of backward class who are highly advanced socially, economically, and educationally). The central issue is—excluding economically developed scheduled castes/scheduled tribes from the benefit of quota. Though the judgement favours preferential treatment to certain scheduled castes over others, the bench referred the issue to a larger bench to be constituted by the Chief Justice of India because in 2005, a ruling in this regard had also been given by a five-judge bench of the Supreme Court and a bench of equal strength cannot overrule a previous verdict. The larger bench will reconsider both the judgements.
Background The Punjab government in 1975 issued a circular granting 50 per cent of the reservation meant for scheduled castes to the more backward communities of the group, including the Balmikis and Mazhabi Sikhs. The Punjab High Court overruled this circular in 2006. The Supreme Court upheld the high court order in 2008.
In 2006, the Punjab government brought out a fresh law, the Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act, 2006 with similar provisions as in the earlier circular of 1975. This again was struck down by the Punjab High Court in 2010, citing the judgement of a five-judge bench of the Supreme Court in E.V. Chinnaiah vs Andhra Pradesh (2005) case. In the Chinnaiah case, the Supreme Court held that the state governments could not make sub-classifications among the scheduled castes and scheduled tribes as the list was prepared by the central government. Parliament alone has the power to deal with the issue once the president notifies the list of scheduled castes. Once a socially, educationally, and economically backward class has been identified, it cannot be further sub-divided to prefer some to the others.
The judgement further stated that creating sub-groups of scheduled castes would also amount to tinkering with the list and violation of Article 14 of the Constitution (Article 14 provides for equality before the law or equal protection of the laws within the territory of India). The names of the scheduled castes given in the presidential order should be considered as the representation of a class as a whole.
The Punjab government then appealed to the Supreme Court and in 2014, a three-judge bench referred the matter to a five-judge bench. It stated that Chinnaiah judgement should be revisited.
Listing the Scheduled Castes
The Constitution of India, while providing for the special provisions for scheduled castes and scheduled tribes, does not specify the castes and tribes that are to be called as scheduled castes and scheduled tribes. This power is vested with the President of India. Article 341 of the Constitution empowers the President of India to specify castes, races, tribes, etc., within the scheduled castes in consultation with the governor of the state. Under Article 341 (2), Parliament also has the right to bring in a law to include or exclude sub-groups from the list of scheduled castes and scheduled tribes. Accordingly, the scheduled castes have been notified in the order, called ‘Constitution (Scheduled Castes) Order 1950’ and the Scheduled Castes and Scheduled Tribes List (Modification) Order 1956. The complete list of castes and tribes was made on the basis of the order of 1950.
The list varies from state to state. There are certain states in India where a group comes in the scheduled caste list but it may not be on the scheduled caste category list in another state.
According to the annual report of the Ministry of Social Justice and Empowerment, there were 1,263 scheduled caste communities in the country in 2018-19. No community has been specified as scheduled caste in Arunachal Pradesh, Nagaland, Andaman and Nicobar Islands, and Lakshadweep. The Constitution treats all the scheduled castes as a single homogenous group.
Need for Sub-categorisation of Scheduled Castes
Even though the benefits of reservation are extended to the entire scheduled caste and scheduled tribes community, over the years, certain dominant groups from these categories have been enjoying these benefits more than others. There are certain groups among the scheduled castes who are grossly under-represented, despite reservation. Many states have argued that the reservation policy currently in place has not been able to give representation to some of the most marginalised sections within the community. This has resulted in some communities within the scheduled caste list to remain most backward.
Quota within Quota
In order to address the issue of non-representation, some state governments have framed special quotas for scheduled castes within the existing quotas. For example, Andhra Pradesh, Punjab, Tamil Nadu, and Bihar have such quotas for scheduled castes.
In 2007, Bihar government set up the Mahadalit Commission to identify the castes within the scheduled castes that were left behind. In Tamil Nadu, there is a three per cent quota within the scheduled castes for the Arundhatiyar caste.
Arguments against Sub-categorisation
The required changes for the socially and educationally backward castes cannot be applied to scheduled castes and scheduled tribes. The special treatment to the scheduled castes was provided to uplift them from socio-economic oppression and practice of untouchability for years and years in the past.
In a 1976 state of Kerala vs. N.M. Thomas, the Supreme Court laid down that “scheduled castes are not castes, they are class”. The petitioner’s argument against allowing states to change the proportion of reservation was also based on the perception that such a move would be made to satisfy one vote-bank or the other. A watertight president’s list was envisaged to protect the scheduled castes and scheduled tribes from such potential arbitrary change.
Conclusion
If the recently proposed seven-judge bench ratifies the latest five-judge bench judgement, this would definitely pave the way for more equality in principle. However, the reality could turn out to be quite confusing and conflicting as each state would have different sub-quotas. Almost 75 years after independence, there is clearly a need for helping out the historically-disadvantaged, but at the same time, it is also important to prevent the better-off within these groupings from availing all the benefits. It has to be done in a prudent way so that it ensures that the reservations are self-limiting.
There is enough evidence from the price-income surveys over the years that higher education leads to higher incomes. This is applicable across all caste groups and hence, reservations should be linked to education levels. Any person whose parents are graduates, for instance, should not be allowed to avail the benefit of reservation. Then, with the passage of time, only the truly-disadvantaged will get the benefit of reservation. Further, since there is a possibility that the really backward castes/tribes may not be able to avail the reservations due to their lack of opportunities and thus resultant inability to go through even the relaxed cut-offs, the government would do well to focus on intensive coaching and scholarships. This should be inclusive of all the backward groups including scheduled castes and scheduled tribes, and also, the higher-caste Hindus, and other religious groups such as Muslims.